The Masterpiece Cake Shop Case is Harder than it May Seem, but the Answer Remains Clear

Oral argument has started on the Masterpiece Cake Shop Supreme Court Case, widely viewed as the most important LGBTQ rights case since Obergefell, or a fundamentally important religious rights cases, or even as purely a case about freedom of expression, all depending on who you ask. The case is centered around the refusal of a Colorado baker to supply the wedding cake for a same sex wedding in 2012 due to religious objections, leading to penalties from the state of Colorado and a series of appeals up the ladder to the Supreme Court.

He maintains he has a right to refuse to participate and offer the use of his craft in the event, just as he would to refuse to cater to a fundraiser for the Communist Party

The position of Jack Phillips, the baker, is interestingly enough not centrally one of religious liberty, but one of compelled speech. Phillips contends that he does not discriminate against individuals based on any criteria, simply that he cannot in good conscience lend his art to a ceremony to which he deeply objects. He finds the order of the Colorado Civil Rights Commission, forbidding discrimination based on sexual orientation, unjust and claims it is unlawful in this specific instance, not because he finds it necessary to discriminate against individuals to fulfill his religious beliefs, but because he maintains he has a right to refuse to participate and offer the use of his craft in the event, just as he would to refuse to cater to a fundraiser for the Communist Party or bake a penis shaped cake; Phillips argues that an order by the government forcing him to participate in the event constitutes compelled speech.

A wedding is not a political statement

In this light the issue is no longer about whether an individual is allowed to discriminate based on sexual orientation or whether the government can outlaw such discrimination, similarly to prohibitions against racial and gender discrimination, but whether or not the behavior of Jack Phillips can be defined as discrimination at all. After all the cake shop claims to serve all who enter regardless of identity, and there would be no issue at all if, for example, they had simply declined to bake a rainbow cake while offering any other choice, just like they are allowed to refuse to bake a cake with a swastika or for a Planned Parenthood fundraiser. An interesting comparison would be if two Black Lives Matter activists had requested the shop lend its services to their event: while racial discrimination is not allowed under federal law, it would almost certainly be legal for the bakery to refuse to make the political statement that BLM represents if they objected to it. Of course, a wedding is not a political statement, and herein lies the problem with Jack Phillips’ case.

The issue arises when the event in question has been consistently suppressed and the participants oppressed politically, culturally and violently for centuries, as it is undeniable that same sex weddings and LGBTQ people have. A better comparison than the BLM event would be a Civil Rights gathering or, closer still, an interracial marriage: a baker would likely not deny service to the black groom or the white bride individually, but may hold a deeply held objection to their union, be it religious, political, or a deep rooted hatred for checkers; whatever the reason may be, to refuse to be involved in their wedding based on racial objections is prohibited, not because the couple would have no alternatives to receive the same service in Colorado, but because such attitudes have been so prevalent and destructive in the past that to truly overcome their consequences in the long term, we must be willing and able to prevent them in the short term. If Klansmen want to march in the street they are constitutionally free to do so, and we should celebrate this fact, but they also must serve a black client at their diner and sell flowers to the gay groom on his wedding day at their flower shop.

I strongly believe that losers have a right to complain, but…

I sympathize with Jack Phillips in this case: I strongly believe that losers, as he and all opponents of gay marriage became after June 2015, have a right to complain and to protest, but he has the necessity to repair a long history of violent oppression working against him.

Dissenting Debate

John

I disagree: to force Jack Philips to bake the cake is an infringment of his freedom of expression. As long as the couple had an alternative, refusing to offer his craft for the wedding was acceptable

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Me

I would agree with you if this were simply a case based on general principles. It is not: the State of Colorado decided that discrimination by businesses against LGBTQ people was enough of a problem that they implemented a law to fight it

John

This case isn’t about the law itself, it is simply about how it is being applied. In this instance the law is being applied so as to compel someone to make a custom work of art for an event that he is morally opposed to

Me

These same arguments have been made every time we have made progress against a new type of oppression: ending segregation infringed on peoples beliefs, forcing the owner of a southern diner to serve a black customer, forcing objecting states to allow women to vote, forcing Kim Davis to issue a marriage licence to a same sex couple

John

Those were all deemed protected by federal law and by the courts because without those services there was no alternative

Me

Sexual orientation was deemed a protected class by the State of Colorado

John

Once again, unlike the south in the sixties, this couple had many alternatives to Masterpiece Cake Shop

Me

And an african american today can go to many a diner, but racial discrimination by any one of them is not permitted regardless

John

To compare this to a Jim Crowe era restaurant or a fundamentalist bank that doen’t recognize women as being able to be financially indipendent is straining the analogy: these are everyday occurrences for every individual, while a wedding is fundamentally not a common event

Me

And yet in cases of racial discrimination we would still consider a wedding a protected event. Same sex weddings have been opposed politically, socially and violently for centuries, just like as any other kind of same sex relation

Mei

I agree that to force Jack Philips to offer his services infringes on his liberty, but unfortunately discrimination against same sex couples infringes on their civil rights. We have to find a balance between the two and the State of Colorado has decided the balance of liberty cannot allow discrimination

John

And the court may decide the balance cannot allow compelled speech

Me

That’s the most likely ruling, but either way I expect a narrow decision, one limited to this one individual case as much as possible and attempting not to affect laws around the country